Petition Missouri Malnutrition Case / The Steele Law Firm

Petition Missouri Malnutrition Case

IN THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI
AT INDEPENDENCE 

PETITION FOR DAMAGES
COUNT I
(Wrongful Death)

COMES NOW, Plaintiff, Eddie Clay, and for his cause of action for the wrongful death of Ms. Blank alleges and states as follows:

  1. [redacted] died on October 17, 2013. Prior to her death, [redacted] was a resident at [redacted], a skilled nursing home facility located at [redacted].
  2. Plaintiff [redacted] is the surviving natural son of [redacted].
  3. As the natural son of [redacted], plaintiff is a member of the class of individuals authorized to pursue the wrongful death claim involving [redacted] pursuant to §537.080 R.S.Mo.
  4. Defendant [redacted]is a Missouri Limited Liability Company. Defendant [redacted] was at all times material hereto the owner, operator, and/or manager of a skilled nursing facility known as [redacted], located at [redacted], Raytown, Missouri.
  5. The negligent acts and omissions alleged herein were committed by the employees, agents and/or servants of defendant while acting within the scope and course of their employment for defendant.
  6. All tortuous acts set forth in this Petition occurred in Jackson County, Missouri such that venue and jurisdiction are proper in this Court.
  7. At all times material hereto, Ms. Blank was in a frail, defenseless, and dependent condition.
  8. As a result of her age and her frail, defenseless and dependent condition, Ms. Blank relied upon the defendant to provide for her safety, protection, care and treatment.
  9. Blank was admitted to The Facility on or about October 15, 2015 and thereafter The Facility, by and through its staff, was required to provide Ms. Blank with appropriate skilled nursing care.
  10. During her residency at The Facility Ms. Blank was harmed as a result of negligent care and treatment, which included the failure of Defendant and/or its staff to ensure that Ms. Blank maintained acceptable parameters of nutritional status.
  11. During her residency at The Facility Ms. Blank was harmed as a result of negligent care and treatment, which included the failure of Defendant and/or its staff to ensure that Ms. Blank received appropriate treatment and services to prevent urinary tract, Clostridium difficilecolitis, and staph infections.
  12. During her residency at The Facility Ms. Blank was harmed as a result of negligent care and treatment, which included the failure of Defendant and/or its staff to ensure that he deceased received appropriate treatment and services to prevent the development of pressure sores.
  13. The above injuries and harm sustained by he deceased as a result a result of negligent care and treatment at The Facility caused or contributed to cause her death on October 17, 2013.
  14. The agents, servants, and employees of defendant had a duty to possess and use that degree of skill and learning ordinarily used in the same or similar circumstances by members of their profession in the care and treatment of Blank.
  15. During the course of their care and treatment of Blank, the agents, servants, and employees of defendant breached their duty and were guilty of the following acts of negligence and carelessness by failing to measure up to the requisite standard of due care, skill, and practice ordinarily exercised by members of their profession under the same or similar circumstances, to wit:
    1. By failing to timely, consistently, and properly assess and document Ms. Blank’s physical condition;
    2. By failing to adequately assess Ms. Blank’s risk of malnutrition/dehydration; pressure sores, and infections;
    3. By failing to provide adequate supervision and/or interventions to address Ms. Blank’s risk of malnutrition/dehydration; pressure sores, and infections;
    4. By failing to provide adequate nursing staff to ensure Ms. Blank 24-hour protective oversight and supervision;
    5. By failing to properly supervise and train the employees, agents, and/or servants of the defendant who were responsible for the care and treatment of Ms. Blank;
    6. By failing to carry out and follow standing orders, instructions and protocol regarding the prevention of falls and injury of Ms. Blank;
    7. By failing to provide adequate staff regarding for the prevention of resident malnutrition/dehydration; pressure sores, and infections;
    8. By failing to provide competent and qualified staff regarding for the prevention of malnutrition/dehydration; pressure sores, and infections;
    9. By failing to provide adequate supervision of staff regarding for the prevention of malnutrition/dehydration; pressure sores, and infections;
    10. By failing to provide adequate training to staff regarding the prevention of malnutrition/dehydration; pressure sores, and infections;
    11. By failing to ensure that Ms. Blank received proper care, treatment, and supervision to prevent malnutrition/dehydration; pressure sores, and infections;
    12. By failing to provide adequate assistive devices to prevent injuries;
    13. By failing to timely report to a physician changes in the condition of malnutrition/dehydration; pressure sores, and infections;
    14. By failing to carry out the instructions of Ms. Blank’s physician; and
    15. By failing to timely transfer Ms. Blank to a facility that could provide her adequate care and prevent further injuries.
  1. As the owners and/or operators of skilled care nursing facilities licensed by the State of Missouri and accepting Medicare and Medicaid funds, defendants were subject to regulations promulgated by the Missouri Division of Social Services and under the Social Security Act and had a duty to comply with such regulations.
  2. While providing care and treatment to Ms. Blank, the employees, agents and/or servants of the said defendants breached their duty to Ms. Blank and violated regulations governing skilled nursing facilities, including but not limited to the following: 19 C.S.R. 30-85.042(3); 19 C.S.R. 30-85.042(6); 19 C.S.R. 30-85.042(13); 19 C.S.R. 30-85.042(15); 19 C.S.R. 30-85.042(16); 19 C.S.R. 30-85.042(20); 19 C.S.R. 30-85.042(23); 19 C.S.R. 30-85.042(37); 19 C.S.R. 30-85.042(44); 19 C.S.R. 30-85.042(66); 19 C.S.R. 30-85.042(67); 19 C.S.R. 30-85.042(71); 19 C.S.R. 30-85.042(72); 19 C.S.R. 30-85.042(74); 19 C.S.R. 30-85.042(75); 19 C.S.R. 30-85.042(78); 19 C.S.R. 30-85.042(79); 19 C.S.R. 30-85.042(80); 19 C.S.R. 30-85.042(90); 19 C.S.R. 30-85.042(81); 19 C.S.R. 30-88.010(20); 19 C.S.R. 30-88-010(24); 19 CSR 30-85.052(1); 19 CSR 30-85.052(2); 19 CSR 30-85.052(4); 19 CSR 30-85.052(6); 19 CSR 30-85.052(7); 19 CSR 30-85.052(8); 19 CSR 30-85.052(11); 19 CSR 30-85.052(12); 19 CSR 30-85.052(14); 42 CFR 483.25(c); 42 CFR 483.25(d); 42 CFR 483.25(i); and 42 CFR 483.25(j); and 42 CFR 483.35.
  3. Blank was a member of the class of persons intended to be protected by the enactment of the aforementioned state and federal regulations.
  4. As a direct and proximate result of the defendants’ negligence as stated above, Blank suffered severe pain, anxiety, mental distress, injuries, and ultimately death. Additionally, Ms. Blank was required to undergo treatment for her condition and incurred expenses for her medical care, funeral and burial.
  5. As a further, direct and proximate cause of the negligence of defendant, plaintiff has sustained losses because of Blank’s death in the nature of loss of services, companionship, comfort, instruction, guidance, counsel, training and support.
  6. The negligence of the defendant was outrageous and constituted gross negligence in that defendant knew or in the exercise of ordinary care should have known that their conduct created a high probability of injury; defendant thereby demonstrated a conscious and reckless disregard for the rights of Blank, permitting the recovery of damages for aggravating circumstances or punitive damages.

WHEREFORE, Plaintiff prays for judgment against the defendants for such sums as a jury determines to be fair and reasonable, for actual damages, for damages for aggravating circumstances, and/or punitive damages together with her costs herein incurred and expended, and for such other relief as the Court deems just and proper.

COUNT II – LOST CHANCE OF SURVIVAL

COMES NOW, Plaintiff Estate of Ms. Blank and for its claim against defendant states the following:

  1. Plaintiff incorporates by reference each and every allegation set forth in paragraphs 1 through 21 as fully set forth herein.
  2. Plaintiff Eddie Clay is the surviving natural son of Ms. Blank. Eddie Clay has been (or is expected to be) appointed the Personal Representatives for the Estate of Ms. Blank by the Circuit Court of Jackson County, Missouri.
  3. The negligence of defendant in failing to properly care for Ms. Blank directly and proximately caused, or directly and proximately contributed to cause the decedent to lose her material chance of survival.
  4. As a direct and proximate result of the carelessness and negligence of the defendant as aforesaid, decedent Ms. Blank suffered the following injuries:
    1. Decedent has had his ability to survive and his significant material chance of survival taken away by defendant’s negligence;
    2. Decedent suffered the loss of his chance of survival and with it the loss of his future enjoyment of life; and
    3. Decedent was required to undergo treatment for her injuries and incurred expenses for medical care.
  1. The negligence of the defendants was willful, wanton and outrageous, constituted malicious misconduct, and/or was so reckless in that defendant knew or in the existence of ordinary care should have known that their conduct created a high probability of injury; defendant thereby demonstrated conscious and reckless disregard for the rights of Blank, permitting the recovery of damages for aggravating circumstances or punitive damages.

WHEREFORE by reason of the premises contained herein, Plaintiff prays for judgment against the defendants, for such sums as are fair and reasonable together with the costs herein incurred and expended and for such other relief the court deems just and proper.

COUNT III
MISSOURI OMNIBUS NURSING HOME ACT

COMES NOW, Plaintiff Estate of Ms. Blank and incorporates by reference each and every allegation contained in paragraphs 1 through 26 above as though fully set out herein.

  1. The cause of action set forth in this Count III is brought under the Omnibus Nursing Home Act, Missouri Revised Statute §198.003, et seq., and more specifically by reason of statutorily created private cause of action created by R.S.Mo. §198.093.
  2. Eddie Clay was (or is expected to be) appointed Personal Representative of the Estate of Ms. Blank, in the Circuit Court of Jackson County, Missouri.
  3. As the owner and/or operator of a long-term skilled care nursing facility licensed by the State of Missouri, the Defendant was at all times material hereto subject to the provision of the Omnibus Nursing Home Act, Section 198.003, et seq.
  4. Plaintiff timely filed a written Complaint of alleged deprivations by defendant causing injury to Blank with the office of the Attorney General for the State of Missouri, describing the facts of the alleged deprivation.
  5. During her residency at Defendant’s nursing home facility, Blank was subject to abuse and neglect at the hands of defendant and/or its employees as stated above.
  6. The aforementioned abuse and neglect by defendant’s employees was physically and mentally tortuous causing great physical pain and suffering and emotional distress and requiring Blank to seek medical treatment and incur medical expenses.
  7. The aforementioned abuse and neglect occurred in violation of the Omnibus Nursing Home Act, §198.088, declaring that, “1. Every facility, in accordance with the rules applying to each particular type of facility, shall ensure that: (1) There are written policies and procedures available to staff, residents, their families or legal representative and the public which govern all areas of service provided by the facility . . . (2) Policies relating to admission, transfer, and discharge of residents shall assure that: . . . (b) As changes occur in their physical and mental condition necessitating service or care which cannot be adequately provided by the facility, residents are transferred promptly to hospitals, skilled nursing facilities, or other appropriate facilities; . . . (6) Each resident admitted to the facility: . . . (g) Is free from mental and physical abuse . . . (i) Is treated with consideration and respect, and full recognition of his dignity and individuality, including privacy and treatment in caring for his personal needs…”
  8. Blank was a member of the class of persons intended to be protected by the enactment of the aforementioned statutes.
  9. The injuries sustained by Blank were the type of injuries that the statutes were enacted to prevent.
  10. As a direct and proximate result of the defendant’s failure to fulfill its responsibility of care and protection to Blank as imposed by the aforementioned statutes attendant to defendants’ privilege of ownership, operation, management and administration of a nursing home business, Ms. Blank suffered severe pain, anxiety, mental distress, injuries, and ultimately death. Additionally, Ms. Blank was required to undergo treatment for her condition and incurred expenses for her medical care, funeral and burial.
  11. The aforementioned actions and omissions were willful, wanton or constituted malicious conduct or was so reckless in that defendant knew or in the exercise of ordinary care should have known that their conduct created a high probability of injury; defendant thereby demonstrated a conscious and reckless disregard for the rights of Blank, permitting the recovery of damages for aggravating circumstances or punitive damages pursuant to Section 198.093(3).
  12. Plaintiff Estate of Blank is entitled to an award of a reasonable attorney’s fee pursuant to Section 198.093(3).

WHEREFORE, Plaintiff Estate of Ms. Blank prays for judgment against defendant in an amount which is fair and reasonable, for its costs and attorney’s fees herein expended and incurred, and for such other relief and the Court finds just and proper.

COUNT IV – NEGLIGENCE

COMES NOW, Plaintiff Estate of Ms. Blank and states as follows:

  1. Plaintiff incorporates by reference each and every allegation set forth in paragraphs 1 through 38 as fully set forth herein.
  2. As a direct and proximate result of the defendants’ negligence as stated above, Blank suffered severe pain, anxiety, mental distress, injuries and harm. Additionally, Ms. Blank was required to undergo treatment for her conditions and incurred expenses for her medical care.
  3. The negligence of the defendant was willful, wanton or constituted malicious conduct or was so reckless in that defendant knew or in the exercise of ordinary care should have known that their conduct created a high probability of injury; defendants thereby demonstrated a conscious and reckless disregard for the rights of Blank, permitting the recovery of damages for aggravating circumstances or punitive damages.

WHEREFORE, Plaintiff Estate of Ms. Blank prays for judgment against the defendants for such sums as a jury determines to be fair and reasonable, for actual and punitive damages, together with the costs herein incurred and expended, and for such other relief as the Court deems just and proper.

DEMAND FOR JURY TRIAL

Plaintiffs hereby demand a jury trial on all issues of fact to the full extent of their rights under the Seventh Amendment of the Constitution and all applicable law.